I Told You So

Since John Paul Stevens is still playing tennis (singles) at the age of ninety-four, it may not be surprising that he just finished his second book since resigning from the Supreme Court, four years ago. Stevens now splits his time between Washington, D.C., and Florida, and the other day he returned to the chambers assigned to a retired Justice looking the same as ever. He was wearing one of his trademark bow ties and speaking with lawyerly precision. “I’m not sure you should say I’m still a tennis player,” he said. “I mean, I haven’t played in a month.”

Stevens’s new book was prompted by the massacre at Sandy Hook Elementary School, in 2012. “I read a newspaper story that said the federal database of criminal records might be incomplete because of a decision by the Supreme Court,” he said. In the 1997 decision of Printz v. United States, the Justices held, over Stevens’s dissent, that the federal government could not compel states to participate in background checks on gun purchasers. “I thought if that decision might be responsible for a situation like the one in Newtown they ought to change it. That got me to thinking that there had to be other rules that ought to be changed.” The result of this process is his book “Six Amendments,” which proposes a handful of changes to the Constitution that would undo what Stevens regards as disastrous errors by his colleagues over the course of his thirty-five-year tenure. An alternative title might be “Six Times I Was Right in the First Place.”

Despite Stevens’s great-grandfatherly mien, he remains ferociously competitive, still stewing over long-ago losses, like the Printz case, and indignant about more recent decisions that he regards as wrong. Take the Court’s decision earlier this month in McCutcheon v. Federal Election Commission, in which Chief Justice John Roberts’s opinion for the five-to-four majority invalidated over-all limits on campaign contributions. “It’s a grossly incorrect decision,” Stevens said. “The very first sentence of the Chief Justice’s opinion lays out a basic error in this whole jurisprudence. He says that there is ‘no right more basic in our democracy’ than to pick our elected officials. But the case is not about whether individuals can pick their own congressmen. It’s about giving lots of campaign contributions, picking other people’s congressmen, not your own.”

One of Stevens’s proposed amendments would undo the result in the famous Citizens United case, which was the occasion for his final major dissenting opinion, in 2010. That decision held that corporations have First Amendment rights much like people and that campaign contributions are a form of speech. (In Stevens’s amendment, Congress and the states may impose “reasonable limits on the amount of money that candidates” or their supporters can spend in election campaigns.) “Money is not speech,” Stevens said. “All these decisions have done is make sure that Congress does not represent people, which is what it’s supposed to do. Rather, Congress represents people who have the money to finance campaigns.”

As Stevens acknowledges, he chose his amendments for a kind of idealized republic, not because he thinks they’ll actually be adopted. (He proposes, for example, altering the Second Amendment so that it’s clear that individuals do not have a personal right to bear arms.) Only one of his amendments suggests a change of mind on his own part. Early in his career at the Court, in 1976, Stevens joined an opinion that reinstated the death penalty in the U.S., which the Court had effectively halted four years earlier. In his book, Stevens proposes changing the Eighth Amendment to prohibit “cruel and unusual punishments such as the death penalty.” “When I signed on to letting the death penalty back in, I thought the procedural protections against executing an innocent person were stronger than they turned out to be,” he said. “I’ve become more conscious of the possibility of error, of executing innocent guys. We can’t permit that. We should not have a system that makes it possible.”

Unlike the other retired Justices, Sandra Day O’Connor and David Souter, Stevens has kept up a running commentary on the decisions of his successors. He finds much to criticize, especially in the work of George W. Bush’s two appointees. “Sam Alito replacing Justice O’Connor was a very significant change,” he said. “He is much more conservative. And, as for John Roberts, he is much more in the direction of protecting the rights of very rich people to donate money to campaigns than Bill Rehnquist ever was.” Stevens promises that the critiques will continue, even as he makes some concessions to the realities of life in his tenth decade. “Now when I go for my swim in the ocean every day, I make sure that someone is there with me,” he said. “I can always get into the ocean, but sometimes I need help getting out.” ♦

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